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COMMONWEALTH PENNSYLVANIA v. STEPHEN ALLEN CONN (09/09/88)

filed: September 9, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
STEPHEN ALLEN CONN, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of York County, No. 2540 CA 1985.

COUNSEL

John R. Gailey, Jr., York, for appellant.

Mark A. Bellavia, Assistant District Attorney, York, for Com., appellee.

Cirillo, President Judge, and Wieand and Del Sole, JJ.

Author: Wieand

[ 377 Pa. Super. Page 443]

Stephen Allen Conn was tried non-jury and was found guilty of possession of a controlled substance with intent to

[ 377 Pa. Super. Page 444]

    deliver.*fn1 Post-trial motions were denied, and Conn was sentenced to serve a term of imprisonment for not less than eight months nor more than twenty months. On direct appeal, he argues that evidence obtained as a result of a warrantless entry of his home by police should have been suppressed. It should have been suppressed, he argues, because there were not exigent circumstances sufficient to excuse the police from obtaining a warrant and because the police failed to comply with the "knock and announce" rule before entering. Because we conclude that Conn's Fourth Amendment right to be free from unreasonable searches and seizures was violated in this case, we reverse and remand for a new trial.

On November 27, 1985, Troopers Lokhaiser and Daryman were engaged in the surveillance of a vehicle owned by Adalberto and Gloria Rodriguez, which had been parked outside appellant's trailer-home in Jackson Township, York County. The State Police had been given information by two confidential informants that the Rodriguezes would be delivering drugs to appellant's residence. While the Rodriguezes were inside appellant's home, Trooper Daryman went to the nearby office of a district justice in order to meet with and to obtain the assistance of local police. At the district justice's office, Sergeant Brown, of the Jackson Township Police Department, told Trooper Daryman that on a visit to appellant's home about a year earlier, he had observed a police scanner in the living room. Thereafter, Trooper Daryman and Sergeant Brown returned to the location of appellant's home and joined Trooper Lokhaiser in the continuing surveillance of appellant's residence. When the Rodriguezes departed, the three policemen followed. After the Rodriguez vehicle had travelled about a mile and a half, it was stopped and searched. Police found in the vehicle a quantity of cocaine and cash in the amount of fifteen hundred ($1,500) dollars. At this point, Sergeant Brown suggested to Lokhaiser for the first time the possibility

[ 377 Pa. Super. Page 445]

    that appellant had a police scanner in his home. Fearing that appellant might have intercepted police radio transmissions which contained information about the stopping of the Rodriguez vehicle and would attempt to destroy other contraband, the police proceeded immediately to appellant's residence. There they knocked on the door, announced their presence, and immediately entered through an unlocked door without waiting for a response to their knock. Once inside, the police observed appellant in the process of cutting and bagging cocaine. Appellant was arrested immediately and advised of his Miranda rights. A search warrant was thereafter obtained from the district justice. Appellant, faced with the search of his home, waived his rights and told the police that he had purchased an ounce of cocaine from the Rodriguezes, from whom he had been buying drugs for several months.

A pre-trial motion to suppress the evidence seized by the police was heard and denied; and the evidence was used by the Commonwealth at appellant's trial.

The law with respect to warrantless searches and seizures has been stated by this Court as follows:

"[a]s a general rule a search or seizure without a warrant is deemed unreasonable for constitutional purposes. Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022 [2031], 29 L.Ed.2d 564." Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101 (1978). However, the realities and practicalities of law enforcement dictate that where exigent circumstances exist, the warrant requirement is excused. United States v. Velasquez, 626 F.2d 314 (3rd Cir.1980); Holzer, supra. Exigent circumstances arise where the need for prompt police action is imperative, either because evidence is likely to be destroyed, id., or because there exists a threat of physical harm to police officers or other innocent individuals. Velasquez, supra.

Commonwealth v. Hinkson, 315 Pa. Super. 23, 27, 461 A.2d 616, 618 (1983). See also: Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984); Commonwealth v. Silo,

[ 377 Pa. Super. Page 446480]

Pa. 15, 389 A.2d 62 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94 (1979); Commonwealth v. Cockfield, 431 Pa. 639, 246 A.2d 381 (1968); Commonwealth v. Ehrsam, 355 Pa. Super. 40, 512 A.2d 1199 (1986). It is clear, however, that rules governing police action without a warrant will be narrowly interpreted in cases involving a person's home. In this regard, the United States Supreme Court has said:

The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home -- a zone that finds its roots in clear and specific constitutional terms . . . . In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Payton v. New York, 445 U.S. 573, 589-590, 100 S.Ct. 1371, 1381, 63 L.Ed.2d 639, 653 (1980), quoted in United States v. Velasquez, 626 F.2d 314, 317 (3d Cir.1980). Cf. Commonwealth v. Flewellen, 475 Pa. 442, 446, 380 A.2d 1217, 1220 (1977) ("Upon closing the door of one's home to the outside world, a person may legitimately expect the highest degree of privacy known to our ...


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